DOJ's New Direction: Implications of the Trump Administration's Recently Announced Corporate Enforcement Framework

A Significant Shift in White Collar Criminal Enforcement

The Department of Justice (“DOJ”) has unveiled a comprehensive plan for its white-collar crime enforcement strategy, laying out the “high-impact” areas where enforcement will be focused, changes and clarification of how the DOJ will view corporate enforcement, digital asset enforcement, monitorships, whistleblowers and voluntary disclosures. These newly released policies demonstrate the Trump administration's vision for corporate criminal enforcement, characterized by targeted enforcement, enhanced incentives for corporate cooperation, and an effort to streamline the approach to resolving corporate criminal matters.

What You Need to Know:

• The DOJ's New Strategy: The Department of Justice has unveiled a comprehensive white-collar crime enforcement plan, emphasizing "high-impact" areas like fraud, digital asset misuse, and foreign corruption.
• "America First" Focus: The strategy prioritizes protecting what the administration deems the most important American interests, potentially reducing scrutiny on U.S.-based corporations while targeting foreign adversaries.
• Digital Assets Recalibration: The policies also demonstrate a shift from what the administration views as too much "regulation by prosecution" to focusing on actual fraud and misuse of digital assets with the goal of fostering innovation.
• Revamped Corporate Enforcement: The new policies aim for clarity and predictability, in offering more lenient pathways for voluntary disclosures and reducing reliance on corporate monitors.
• Whistleblower Incentives: The Corporate Whistleblower Awards Pilot program now offers incentives targeting specific unlawful practices, aligning whistleblower rewards with the administration's enforcement priorities.

1.         Examining the White-Collar Enforcement Plan

The newly released "Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime" enforcement plan (the “Plan”) differs from the guidance of previous administrations by combining statements of policy and priorities, but also articulates how DOJ will plan to deal with various high-interest issues. The Plan notes that it will focus on those “Harms to America Posed by White-Collar Crime”, highlighting enforcement efforts relating to consumer, investor, and government fraud, criminal exploitation of digital assets, tariff evasion, corrupt practices by “companies and foreign officials”, money laundering, and terrorism. A theme of the policies is to level the playing field so that the United States is not suffering as the fool to criminals domestic or abroad. The Plan states explicitly the “high-impact” areas that will be prioritized:

• Fraud, waste, and abuse, including health care fraud and fraud based on other federal programs;
• Trade and customs fraud, including tariff evasion;
• Foreign companies that disadvantage American businesses or threaten national security;
• Fraud that manipulates market conditions, such as elder fraud, securities fraud, “pump and dump” schemes, Ponzi schemes, and investment fraud;
• Entities providing material support to cartels, transnational criminal organizations, and terrorists;
• Violations of the Controlled Substances Act and the Federal Food, Drug, and Cosmetic Act, focusing on the distribution of fentanyl and the unlawful distribution of opioids;
• Bribery and money laundering that impact national security interests and involve foreign corruption; and
• Digital asset cases of fraud or misappropriation, rather than technical regulatory violations.

This targeted approach reflects the administration's belief that “overbroad and unchecked corporate and white-collar enforcement burdens U.S. businesses and harms U.S. interests”—a theme consistent with the broader deregulatory agenda championed by the administration during the campaign and in the first few months of the Trump administration.

2.         “America First”: A New Lens for Corporate Enforcement

A recurring theme throughout the new enforcement framework is the protection of what the administration considers to be “American” interests. As an example, the Plan cites the Presidential Executive Order Pausing Foreign Corrupt Practices Act (FCPA) enforcement to issue updated guidelines or policies focused on bribery and money laundering impacting U.S. businesses, national security, and national interests. This realignment suggests that U.S.-based corporations may face less scrutiny under the FCPA than their foreign counterparts—a significant development for multinational enterprises navigating global anti-corruption compliance. We assess that the principled reason for the administration to relax this enforcement is to level the playing field because they reason other countries are allowing their companies to engage in such corrupt practices in the United States.

The enforcement priorities also highlight cases involving "foreign adversary companies listed on U.S. exchanges," indicating that companies from certain nations, such as China, may receive heightened attention from prosecutors. This geopolitical dimension to enforcement represents a notable integration of the administration's foreign policy objectives with its criminal enforcement agenda. None of this should come as a surprise, as the administration appears to be taking an all-of-government approach to international competition.

3.         Recalibrating Digital Asset Enforcement

The DOJ's approach to digital assets and cryptocurrency has been substantially revised under the new framework to make it more welcoming to innovation in the digital asset space. Moving away from what Criminal Division Head Matthew R. Galeotti characterized as "regulation by prosecution," the Department will now focus on cases involving:

• Actual investor fraud or asset misappropriation; and
• Digital assets used to facilitate terrorism, drug trafficking, or sanctions evasion.

Notably, the plan explicitly states that prosecutors will shift their focus away from cases involving non-willful violations of money transmission or registration requirements, which is a significant relief for many blockchain and cryptocurrency enterprises operating in uncertain regulatory waters. Accordingly, technical regulatory hurdles such as whether tokens could be classified as securities, appears to take a backseat to actual market manipulation or funding our adversaries.

4.         The Revised Corporate Enforcement Policy: Clarity and Predictability

The revised Corporate Enforcement and Voluntary Self-Disclosure Policy (CEP) represents a notable change for companies facing potential criminal exposure. The new CEP is clearly designed to present a kindler, gentler face to American corporations, but the promise will need to be compared to the practice. The new policy promotes several improvements to its predecessors:

1. Streamlined Framework: The policy has been condensed, eliminating what Galeotti described as "unwieldy" provisions that made navigation of the prior DOJ policy difficult for corporate counsel.
2. Enhanced Predictability: The DOJ believes the new policy will give companies clearer guidance on what constitutes full cooperation and the expected benefits.
3. Expanded Declination Pathways: The policy intends to create more routes to declination for companies that self-report misconduct.

A significant aspect of the revised CEP is its treatment of incomplete voluntary disclosures. Where previous iterations imposed penalties for incomplete disclosures, the new policy acknowledges that initial disclosures may not capture all misconduct. Companies that make good faith efforts to disclose known issues promptly may still receive substantial credit even if additional misconduct is later discovered. The tenor of the plan is to provide corporations with reassurance that there are many pathways to no action or lenient treatment from the DOJ. We asses that these pathways will be generally generous, but dependent on the egregiousness and consistency with political priorities of the administration.

5.         Corporate Monitors: A More Reserved Approach

The new guidance on corporate monitors reflects a preference for corporate independence and self-directed compliance efforts, but generally can be viewed as a decrease in utility of monitorships. Key changes include a list of “principles” that discuss how:

• Monitors will be imposed only in cases where the risk of recurrence poses a substantial threat to “U.S. interests” (e.g., crimes that “facilitate cartels, transnational criminal organizations, narcotics trafficking, and material support to foreign terrorist organizations.”);
• Existing regulatory oversight will be considered as a potential alternative to monitoring, so long as the regulator can exercise sufficient oversight;
• Companies' voluntary engagement with third-party compliance experts may eliminate the need for a DOJ-appointed monitor; and
• Consideration of a company’s maturity in its ability to implement its own controls to detect and prevent similar misconduct may eliminate the need for a monitor.

This reduced reliance on monitors echoes the CEP’s deemphasis on only deploying monitors when declination or resolution is inappropriate under the circumstances, and we expect any monitorships to be constructed with limited time and scope.

6.         Whistleblower Incentives Aligned With Enforcement Priorities

The new Plan promotes incentives for blowing the whistle about unlawful practices by companies. The revised Corporate Whistleblower Awards Pilot Program has also been recalibrated to support the administration's enforcement priorities. Like the prior program, the new policy continues to offer financial incentives of up to 30% of the first $100 million in net proceeds forfeited and up to 5% of any net proceeds forfeited between $100 million and $500 million. However, the new DOJ policy modifies the program only to provide incentives for whistleblowers who provide information related to:

• Fraud and fraudulent schemes, including those against financial institution regulators;
• Violations related to foreign corruption and bribery;
• Bribes and kickbacks to domestic public officials;
• Violations related to federal health care programs and in the health care industry;
• Corporate support for designated transnational criminal organizations;
• Tariff evasion and customs fraud; and
• Violations of federal immigration law.

This approach to marketing whistleblower incentives will drive the reporting of insider information in the specific areas the administration has identified as priorities, and preventing, identifying, and remediating misconduct before it begins or expands.

7.         Strategic Considerations for Corporate Counsel

These recent DOJ policy shifts and priorities create several critical strategic considerations for companies and their legal advisors:

Voluntary Disclosure Calculus

The enhanced benefits for voluntary disclosure combined with more lenient treatment of incomplete disclosures significantly alter the risk-benefit analysis of self-reporting. Companies discovering potential misconduct should carefully evaluate the advantages of prompt disclosure under the new framework, which may outweigh the risks even when internal investigations remain ongoing.

Compliance Program Alignment

Corporations would be wise to ensure compliance resources are allocated to address the DOJ's stated priorities and are calibrated to detect the conduct that is prohibited. Particular attention should be paid to:

• Health care fraud and fraud of other government programs;
• Fraud that impacts national security or other national interests important to this administration, such as immigration compliance;
• Business fraud targeting U.S. companies and impacting market conditions;
• Customs and tariff compliance protocols;
• Screening of business partners for potential ties to designated criminal organizations; and
• Anti-corruption controls for U.S. companies operating abroad (though with potentially reduced enforcement risk).

Proactive Documentation of Compliance Efforts

Given the DOJ's emphasis on corporate independence and self-directed compliance, companies should thoroughly document their proactive compliance initiatives. This documentation may prove valuable in demonstrating to prosecutors or courts that external monitoring is unnecessary and that there was no corporate intent, should misconduct occur despite these efforts.

Foreign and State Enforcement Considerations

While these new policies indicate a shift in federal enforcement priorities, companies must remain vigilant about potential prosecution by state attorneys general and foreign authorities in other areas. The administration's retreat from certain enforcement areas may create vacuums other regulators seek to fill.

Whistleblower Monitoring

Given the encouragement in the Plan and in its False Claims Act (FCA) enforcement guidance for individuals to disclose violations of law because of the rich incentives to disclose under the Whistleblower Awards Pilot Program and the FCA of collecting a proportion of any government recovery, we should expect these complaints to proliferate. Having internal compliance program avenues for such reports to be detected internally will allow for prompt addressing of the issue to minimize the damages and risks caused by any reported violations. Equally important for litigation intelligence is to track what Qui Tam matters are intervened in by the government or otherwise allowed to proceed, and to understand what other avenues potential Relators are pursuing to elevate their complaints in the hope of a cash grab.

Conclusion

The DOJ's new enforcement framework represents a meaningful shift toward a more overtly business-friendly approach to corporate criminal enforcement. By prioritizing cases directly affecting what they believe are American interests, creating clearer paths to addressing corporate criminal liability, and emphasizing corporate independence in compliance matters, the Department has signaled its intent to increase partnership with rather than antagonize the business community.

These changes present both opportunities and responsibilities for corporate counsel. While enforcement risks may be reduced in certain areas, the targeted priorities identified by the DOJ demand focused compliance attention. Companies that align their compliance programs with these priorities and embrace the opportunities for voluntary disclosure and cooperation stand to benefit most from this new enforcement landscape.